Massachusetts' Buffer Zone Law Is In Danger

It looks very much like the law here in the Commonwealth (God save it!) that requires a 35-foot "buffer zone" around reproductive health clinics is probably going to go down in the Supreme Court. As Scott Lemieux points out, this largely may be a function of the court's lineup having changed for the worse since the last time a buffer-zone law came before it. I await some brogressive bro' to come to explain to me how it would have been better for progressive causes had we all voted for Willard Romney and Heightened The Contradictions.

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The law was put in place in 1994 after a murderous loon named John Salvi opened fire in a Planned Parenthood clinic in Brookline, killing two people and wounding five of them. A decent Republican governor, the late Paul Cellucci, signed the bill into law. The plaintiffs in the case chose a cherubic septuagenarian nuisance named Eleanor McCullen as the face of their lawsuit, but the game gets given away when you realize that they are not merely opposing the Massachusetts statute, but asking what appears to be a sympathetic Court to ban the very concept of buffer zones as unconstitutional.

(And let us leave aside the maunderings of Sub-Left'nant Blimp at the National Reviewbecause he doesn't know what the hell he's talking about, and neither, apparently, does Justice Sam Alito. Justice Alito, who is no friend to maximalist readings of the First Amendment, wondered aloud how this could possibly be kosher. Per MSNBC, Alito proposed a hypothetical: A woman entering a clinic is approached by two other women. One says, "Good morning, this is a safe facility," the other says, "Good morning, this is not a safe facility." Alito said, "The only difference is that one is committing a crime. How can a statute like that be considered viewpoint neutral?" In fact, as was explained by the Commonwealth's lawyers, if these two people are within the buffer zone, both people are breaking the law. "No person" means "no person." Justice Ruth Bader Ginsburg seems to have a grip on this obvious fact.)

In one sense, it's a tough call. The First Amendment concerns here are not ephemeral. At the same time, the lawsuit is a fake. It is not being brought to defend the free speech and gentle persuasion of nice old Ms. McCullen. It is being brought to protect tactics that make it harder for women to exercise their equally protected right to choose. Again,the game is given away by the lawyer for the plaintiffs, Mark Rienzi.

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Mark Rienzi, the Catholic University law professor who represents the protesters, said there has not been a documented case of violence at a Massachusetts clinic since the 1994 killings. "The idea that someone like that will be deterred by a painted line on the ground is nonsensical," he said. "In the meantime, you shouldn't be able to use that to stop women from being offered these other options. As a practical matter, that's what happens."

In other words, the law has worked so, therefore, it should be abandoned. This logic must have appealed to the Court's majority since it's pretty much the same logic by which they gutted the Voting Rights Act. And, of course, while I am flattered by Mr. Rienzi's implicit argument that we here in the Commonwealth (God save it!) are less inclined to resort to murder over our beliefs than are various citizens in Florida, Kansas,New York, or Alabama and Georgia, where folks have contributed to the death toll piled up by Mr. Rienzi's side of the argument since John Salvi unlimbered his shootin' 'arn in the clinic in Brookline, I'm not as sanguine as Rienzi is as to what will happen when this law falls. And having watched Occupy demonstrators get pepper-sprayed, and rousted with considerable force from the public parks, and having been herded into "free-speech zones" at political conventions, I am disinclined to care very much about a relatively minor inconvenience imposed generally on a debate in which one side literally has a body count behind it.

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